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Net neutrality comments close: Let the BS begin!

Everyone loves it! Everyone hates it! FCC will do whatever it wants anyway

By Kieren McCarthy, 31 Aug 2017

The latest comment period on the effort to kill off America's net neutrality rules has closed – and the circus has officially reopened for business.

A staggering 21.8 million missives have been sent to FCC on the subject – a number so large that it has pretty much allowed anyone and everyone to claim that their point of view is the one most strongly represented.

But one company has attempted to do a full analysis. Unfortunately that analysis was funded by Broadband for America – a cable industry lobbying group – so any results from the consulting firm in question, Emprata, are going to come under considerable scrutiny.

That said, there is some serious analysis in its subsequent report [PDF] – as evidenced by the fact that it pretty much says the opposite of what the cable industry wants to hear – and it has done a pretty thorough job digging into the comments, what they were arguing for, and where they came from.

In every measure except one, there was a clear majority of people opposing the FCC's plan.

Of the 21.766 million comments, 60 per cent were against repealing the legal classification (so-called Title II) that defines internet access as a form of utility, rather than a service, and underpins the net neutrality rules.

However, the paper says that if you remove "duplicative comments" and comments from email addresses that "appear to be illegitimate," then "general sentiment favors repeal."

Of course the question then is what the company considers "duplicative." Fortunately, it reveals its methodology: it only accepted the first comment from a physical address or email address.

No simple answer

That may appear to be a solid approach, but it also ignores reality: many people submit legitimate concerns through websites that offer to simplify the process and allow you to make your views known very simply – sometimes with the click of a button or sometimes after you provide your name and email address.

Unless and until the federal government is willing to provide guidelines on what it will and will not accept as a legitimate comment from a citizen in response to a public comment process, it is going to be impossible to make sense of these vast responses.

Assuming a legitimate case – where a website requires a commenter to provide their name and email address before sending a comment on their behalf – Emprata's methodology would still discount any comments but the first, since they would all come from the same email address.

That is clearly not a sustainable position, but at the same time, unless you dig into each individual form-letter website and ascertain how legitimate each source is, it is an understandable approach for trying to make sense of what is really happening.

The majority of comments were in fact form letters – 89.8 per cent of those against repeal and a staggering 99.6 per cent of those for repeal – were not sent from an individual's email account.

Clearly there has been widespread ballot stuffing on both sides; the hard part is trying to figure out what is legit and what is not. In an effort to avoid having comments discarded for coming from a single address, some form-letter site decided to generate email address.

The study found that millions of comments were generated from email addresses that derived from FakeMailGenerator.com. Despite that service's name, it is in fact possible to send – and receive, and view – emails from that address. Again, the technique could be used both to generate huge numbers of fake comments, and to allow people to send comments very easily without the risk of being discounted.

In any case, of the 7.88 million comments sent through this method, 61 per cent were actually for repeal and 38 per cent were against.

Legit stats

So what about the clearly legit comments sent in the normal way we all send email: using our personal account and writing an email in our own words?

In that case, the vast majority were against the FCC's plans to repeal net neutrality: 1.52 million against just 23,000 that agree with the plan. That's 98.5 per cent against the FCC's plans.

Overall it is clear that public comment process has said, fairly loudly, that people are not in favor of the plan to repeal Title II. There is a clear argument to be had, however, that the federal government should come up with some rules and guidelines to make future public comment processes less chaotic and more representative.

Not that it matters in the alternate-fact universe that the US currently inhabits.

The cable industry is desperate to have Title II repealed, and nowhere is that more clear than in a blog post this week from AT&T's VP of regulatory and state external affairs, Joan Marsh.

Marsh argues that defenders of the current rules have embarked on a massive misinformation campaign and "badly misled the public about what is at stake in this proceeding."

She argues that "nothing in the history of broadband remotely suggests that Title II regulation is necessary to ensure an open internet" – aside from "a tiny number of alleged 'incidents' ... all of them were fully addressed without Title II."

Misleading

Despite having received and bankrolled the Emprata study – which concluded that there was ballot stuffing on both sides but that whichever way you look at it, the clear sentiment is against the FCC's plan – Marsh paints things in a very different light.

"One final note on the millions of mass-produced comments ... most of those appear to us to be fraudulent. Millions of comments were generated using phony email addresses. Millions of others were generated using duplicative email or physical addresses. And still others originated overseas," she writes – ignoring the fact the same was true of comments approving of the FCC's plan.

She then misrepresents the Emprata study by arguing that "when only legitimate comments are considered, the large majority of commenters oppose Title II regulation of internet access."

There is also a strong case to be had against Marsh's assertion that only a "tiny number of alleged incidents" have occurred and there is no need for the current net neutrality regulations.

Also this week, the National Hispanic Media Coalition (NHMC) has announced it has a second installment of documents it received from the FCC in response to a freedom of information request. The documents show that no fewer than 47,000 consumer complaints have been filed with the FCC since the rules came into effect, arguing that their ISP has in some way violated them.

The FCC has fought for months to prevent the release of the documents, but finally handed over 7,000 pages last week and a further 13,000 pages this week. The NHMC is planning to analyze and post the documents, presumably before the FCC next meets to consider the next steps in its plan.

Whatever

Not that any of this is likely to make any difference.

The chair of the FCC, Ajit Pai, has repeatedly made it plain that he intends to force through the repeal of Title II, regardless of what anyone says.

Pai has repeatedly recited the cable industry's talking points, has disparaged or mocked any and all opponents to his plan and advocates for the current rules, and has almost exclusively favored arguments and comments from broadband providers over everyone else – including internet companies, technology companies and millions of individual internet subscribers.

The revised version of the plan that the FCC put forward following the previous public comment period was almost embarrassing in its failure to consider any position other that the one it already espoused.

The reality is that no one expects the FCC to do anything but continue on its vague path to unraveling the current rules – and that is most clearly noticeable in the comments sent by large, savvy technology companies.

Apple's response [PDF], for example, makes no mention at all of "Title II," but defends every aspect of the rules on which that classification relies on. It notes that: "These key principles are reflected in the FCC's current rules..."

But it also knows nothing is going to stop Pai from using his position and majority on the FCC to overturn the previous rules. And so Apple says that even though everything it agrees with is already in the current rules, that it "remains open to alternative sources of legal authority, but only if they provide for strong, enforceable, and legally sustainable protections, like those in place today."

Of course, the bigger issue is what happens when Pai is out of power at the FCC. He will overturn previous chair Tom Wheeler's vision of net neutrality. If the next FCC chair is a Democrat, they will simply overturn Pai's overturning.

The only way to stop this revolving circus is for Congress to step up and develop much-needed telecom legislation that reflects the modern digital world. But with everything in Washington in such a paralyzed state of partisanship, that is a prospect that, even if it is undertaken, would probably just result in yet more noise and poor policies.

In short, we are now entering stage three of the net neutrality goat rodeo. ®

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